The Attorney General’s department says it does not support a series of recommendations for greater safeguards on the use of control orders.
These safeguards are now now the subject of an inquiry by the independent national security legislation monitor Roger Gyles QC.
Control orders are controversial powers that have been available since 2005, which allow police to apply to a court to seek broad restrictions on a person’s movement and association, generally in order to assist in the prevention of a terrorist attack. They are not criminal proceedings, and require a lower standard of proof.
In 2013, the Council of Australian Governments recommended increasing safeguards for control orders.
This included introducing a test by which the restrictions imposed on a person were subject to the “least interference” possible, giving people some access to communications devices and providing more information to people subject to orders.
But the Attorney General’s department rejected each of these recommendations. It said no additional requirements surrounding the “least interference” of a person should be imposed because there was already a test imposed that the control order should be “reasonably appropriate and adapted for the purposes of protecting the public from a terrorist attack.”
With regards to allowing access to a mobile phone and landline, the department said: “Implementing the recommendation would reduce flexibility to tailor conditions to the particular threat posed by the subject of a proposed order.”
The Australian Human Rights Commission recommended that the additional safeguard should be imposed. It also said there should be a clear minimum standard of information to be provided to a person who is subject to a control order.
The review had also recommended that “special advocates” be introduced for control-order proceedings, to allow a person to have a legal representative in some forms of closed-door hearings. The Australian federal police said it did not support the recommendation because people subject to orders were still afforded the same level of legal protection and the “utility of introducing special advocates in the existing regime appears to be very limited”.
The attorney general’s department did not dispute the recommendation for a special advocate, and said: “for your information, the government is preparing a further package of legislative amendments for introduction later this year.
Those amendments will respond to lessons learnt from recent counter-terrorism operations and implement outstanding recommendations from independent reviews.”
The federal court wrote in its submission that the chief justice “strongly supports” the view that the federal court should have exclusive jurisdiction over control-order proceedings.
Control orders have been used four times in the past 12 months, most recently in the case of Harun Causevic, who had terrorism charges dropped against him due to a lack of evidence. All four cases have been heard by federal circuit court judges; in two sets of proceedings it is possible there will be a constitutional challenge.
The federal circuit court expressed some concerns over its ability to accommodate control-order cases due to security concerns, and said it “appreciates the rationale” for confining applications to only the federal court.
“As you would appreciate the federal circuit court is a court of high volume and relies on the resource and registry support of both the federal court and family court,” the court said. “In Sydney, the court operates from a number of localities, including commercial premises, which do not have the necessary security infrastructure to accommodate these application”
